Godwin v Swindon Borough Council

The deemed date of service under rule 6.7(1) of the Civil Procedure Rules is fixed. Evidence that a document arrived earlier or later does not alter that date. The rules excluding weekends and specified holidays apply when calculating deemed postal service. Where limitation is critical, the powers to dispense with service cannot rescue late service of a claim form if the conditions for a retrospective extension under rule 7.6(3) are unmet. Evidence of actual receipt remains relevant to separate procedural discretions, including setting aside default judgment. The overriding objective guides interpretation but cannot create a power which the rules exclude.

Melvin Godwin, a roadman employed by Swindon Borough Council, claimed damages against the council for a back injury sustained at work. His claim form was issued shortly before the three-year limitation period expired. Orders extended the time for service to 8 September 2000. His solicitors posted the claim form and accompanying documents by first-class post on 7 September, and the council received them on 8 September.

District Judge Bird struck out the claim on 21 December 2000 because the deemed service date under rule 6.7(1) of the Civil Procedure Rules fell after the extended deadline. On 19 February 2001, Judge Longbotham, sitting at Bristol County Court, allowed the claimant's appeal because actual receipt established timely service. The council obtained permission for a second appeal. The principal question was whether evidence of actual receipt could rebut the deemed service date. Following further written submissions, the court also considered whether it could dispense with service to preserve the claim.

1. The appeal was allowed unanimously, and the district judge's order striking out the claim was restored. May and Pill LJJ agreed on the controlling construction of rule 6.7(1). Rimer J agreed in the result through different reasoning.

2. Per May LJ, whose construction Pill LJ adopted, the dates prescribed by rule 6.7(1) were fixed dates of service. Actual arrival, whether earlier or later, did not replace them. The rule governed documents served by courts as well as parties. Its interaction with certificates of service, notices of service and procedural timetables required a secure date. First-class postal service attracted the second business day after posting, with rule 2.8 excluding weekends and specified holidays. The documents were therefore served on 11 September, after the deadline.

3. Per May and Pill LJJ, rules 6.1(b) and 6.9 could not dispense with service where that would circumvent rule 7.6(3). A claimant who had missed the service deadline in substance required an extension. Where limitation was critical and the conditions for a retrospective extension were unmet, a general dispensing power could not supply the missing power. The reasoning in Vinos v Marks & Spencer plc and Elmes v Hygrade Food Products plc supported that conclusion. The contrary approach in Infantino v MacLean was rejected. Whether every order under rule 6.9 had to be prospective was left open.

4. May and Pill LJJ also explained that actual receipt remained relevant to setting aside default judgment. Rule 13.3(1)(b) could provide a good reason for relief where the defendant had received no notice before judgment. That ground was independent of a real prospect of defending the claim. Such evidence did not change the deemed service date.

5. Rimer J considered that deeming provisions should extend only as far as their purposes required. Evidence of non-receipt or later receipt could be admitted for some purposes. A serving party who chose a method carrying a prescribed service date could not establish earlier service to save the claim. He left open whether later actual receipt could defeat timely deemed service. Pill LJ rejected construing rule 6.7 as a sanction for delayed claims.

• Court of Appeal: In Godwin v Swindon Borough Council [2001] EWCA Civ 1478 , allowed the council's second appeal unanimously and restored the order striking out the claim. Schiemann LJ had granted permission because the point was important and judicial views differed.
• Bristol County Court, Judge Longbotham: On 19 February 2001, allowed the claimant's appeal, treating proof of actual receipt within the extended deadline as sufficient service.
• County Court, District Judge Bird: On 21 December 2000, struck out the claim because its deemed service date fell outside the extended period. Granted permission to appeal to the circuit judge.